Holograph wills vs Notarial wills

 

 

 

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Holograph wills vs Notarial wills

What kinds of wills are recognized in Quebec?

Three types are recognized:

  1. notarial wills
  2. holograph wills,
  3. wills signed before witness

To be valid, each type of will must follow certain rules.

What kind should you choose? It depends on your needs, your knowledge and your finances at the time the will is made.

Whichever type you choose, if the rules of the Civil code of Quebec are followed, all three are legal when it comes to making sure your wishes are respected.

What is a notarial will?

As the name suggests, a notarial will is draft by a notary.

Notaries can write a will that follows the legal rules, that reflects your wishes and takes into account your family and financial situation.

Here are the main rules:

  1. A notarial will must be written in English or French.
  2. The will must indicate the place and date it was made.
  3. You must sign it before the notary and a witness. Sometimes two witnesses are necessary.
  4. The will must then be read to you so that you can declare that reflects your last wishes. The reading has to take place in the presence of the notary only.

Note that a lawyer can also draft a will, but it will then be a different type: not a notarial will, but a will made in front of witness.

What are the advantages of notarial wills?

  • They are harder to challenge. This is because a notary vwerify your identity, your signature and that you agreed to the will, also the identity and the signature of your witness. The notary also makes sure the will follows all the legal rules, and he is the grantor of the date and the place of the signature.
  • You get the benefit of the advice of a legal professional.
  • They don’t have to be probated after you die.This is done in court or by a notary.
  • They are easy to find after your death because the notary keeps the original and register it in the Registre des dispositions testamentaires de la Chambre des notaires du Québec (a registry kept by the notaries association of Quebec).

What is a holograph will?

A holograph will must be entirely written by you and signed by you.

This is the simplest kind of will, because there are only two requirements:

  • They must be written by hand, and not on a computer or using another mechanical means. Disabled people can also write using their mouths or feet.
  • They must be signed by the person making the will.

Even if you don’t need witnesses, for this kind of will, it is a good idea to tell your loved ones where you plan to keep it. A safe place like a safety deposit box is preferable to the bottom of a drawer! Also, even though it is not necessary to mention the place and date the will was made, this can be useful:

  • The place is useful if the will is made outside Quebec.
  • If you leave more than one will, a date will help (to know the last being signed).

These details are useful because the old will remains valid. If any parts of the old contradict the most recent one, those parts of the old will won’t apply.

To avoid confusion, when you write a second will, make sure to include all your wishes and to cancel all old wills. You can do this by writing, “This will completely revoke any earlier wills.”

What are the advantages and disadvantages of holograph wills?

Advantages:

  • They can be made anywhere, at any time.
  • They don’t cost anything. You don’t have to pay professional fees.

Disadvantages:

  • They must be probated after you die. This involves costs and delays.
  • They can be lost, destroyed or damaged.
  • By creating this kind of will yourself, you don’t get legal advice. Advice can help you think about situations you haven’t anticipated (For example: if you write a second will, you have to think about cancelling the first one.)
  • Problems of interpretation: legal professionals can anticipate these problems and write a will to avoid them (For example: if a will says that “all the personal belongings of the deceased will go to her favourite niece”, the meaning of “personal belongings” and who is the “favourite niece” are unclear.)

Holograph wills vs Notarial wills

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